Administrative Law Commons^™

Proposing A Place For Politics In Arbitrary And Capricious Review, Kathryn A. Watts

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Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the notion that influences from political actors, including the President and Congress, cannot properly help to explain administrative action for purposes of arbitrary and capricious review. This means that agencies today tend to sweep political influences under the rug even when such influences offer the most rational explanation for the action.

This Article argues that this picture should change. Specifically, this Article argues for expanding current conceptions …

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane K. Winn, Nicolas Jondet

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In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Société de l'Information" (DADVSI).

ARMT is both …

Promoting Equality After Genocide, Sheri P. Rosenberg

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The value of equality has little currency after genocide and ethnic cleansing. Restoring that value is no easy feat. Paramount, though not singular, in this struggle for equality is the role of the law A State establishes its common legal rights and duties through its legal institutions, which define the values and character of the nation. Legal institutions mediate these values and norms and through legal pronouncements provide a template for future civic engagement and social interaction. Equality and antidiscrimination jurisprudence is particularly important during the delicate period of transition alter genocide, because it grounds within society the normative shift …

Ossification’S Demise? An Empirical Analysis Of Epa Rulemaking From 2001-2005,, Stephen M. Johnson

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For more than a decade, academics have suggested agencies are increasingly avoiding notice and comment rulemaking because the process has become “ossified” by procedures imposed by Congress, courts and the Executive Branch, and because the rules ultimately issued by agencies are frequently challenged. This article reviews the rules the United States Environmental Protection Agency (EPA) issued between 2001 and 2005 to determine the validity of those criticisms. With regard to judicial challenges, 75% of EPA’s most important (“economically significant”) rules issued between 2001 and 2005 were challenged in court. This is consistent with the anecdotal claims of former EPA Administrators …

The Reformed Cfius Regulatory Framework: Mediating Between Continued Openness To Foreign Investment And National Security, George S. Georgiev

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No abstract provided.

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

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Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …

A Presumption Against Agency Preemption, Nina A. Mendelson

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Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …

A "New Approach" To Standards And Consumer Protection, Jane Winn, Nicolas Jondet

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As consumer use of information and communication technology (ICT) products grows, the importance of ICT standards in consumer markets also grows. While standards for manufactured products were once developed at the national level in formal standards bodies, standards for ICT products today are more likely to be developed by informal standards bodies that target global markets, creating new challenges for national consumer protection laws.

As part of the process of creating a single market, the EU developed an innovative and successful form of “coregulation” known as the “New Approach” that coordinated the work of legislators and standards developers to reduce …

Disability, Equipment Barriers And Women’S Health: Using The Ada To Provide Meaningful Access, Elizabeth Pendo

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It is well-known that people with disabilities face multiple barriers to adequate health care, including lower average incomes, disproportionate poverty, and issues with insurance coverage. This article focuses on a more fundamental barrier-one that has not been discussed in the legal literature-inaccessible medical equipment and its effect on the delivery of women's health care to millions of women with disabilities .

Strange Bedfellows, David M. Uhlmann

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Environmental protection has not been a priority for the Bush administration, but, contrary to popular perception, criminal prosecution of companies and officials accused of breaking environmental laws has flourished.

Bringing Deference Back (But For How Long?), Stephen M. Johnson

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For most of the past decade, the Supreme Court seemed to be gradually eroding the deference accorded to administrative agencies. In Christensen v. Harris County and United States v. Mead Corp. the Court refused to accord Chevron deference to agencies' interpretations of statutes when the agencies adopted those interpretations through informal procedures. The trend appeared to continue when the Court refused to accord Chevron deference to tobacco regulations adopted by the Food and Drug Administration in FDA v. Brown & Williamson Tobacco Corp. or to controlled substance regulations adopted by the Attorney General in Gonzales v. Oregon. In addition, …

Policy Formulation Versus Policy Implementation Under The Magnuson-Stevens Fishery Conservation And Management Act: Crab Rationalization, Richard Henry Seamon

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The Magnuson-Stevens Fishery Conservation and Management Act (MSA) governs management of fisheries located three to 200 miles off the coast of the United States. The MSA is unique in administrative law in that it devolves policy formulation to eight Regional Fishery Management Councils rather than to a federal agency. That agency, the National Marine Fisheries Service (NMFS), is relegated primarily to developing regulations that implement the councils' policies. NMFS can review the councils' policies only to ensure that they are consistent with existing laws. NMFS has no authority to revise policy to suit its own preferences, or to write regulations …

Chevron's Demise: A Survey Of Chevron From Infancy To Senescence, Linda Jellum

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No abstract provided.

Good Guidance, Good Grief!, Stephen M. Johnson

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This article examines the problems created by the White House reforms and prior reforms proposed by Congress, ACUS and academics, and outlines the advantages and disadvantages of the alternative APA amendments outlined above. Part II of the article explores the basic differences between legislative rules, interpretive rules and policy statements and the reasons for the trend away from legislative rules. Part III introduces the long-standing concerns regarding interpretive rules and policy statements. Part IV examines the proposals and initiatives of ACUS, academics, and the various branches of the Federal government to address those concerns; and Part V identifies the weaknesses …

Nsf Fees, James J. White

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Overdraft fees now make up more than half of banks' earnings on consumer checking accounts. In the past century, overdrafts have gone from the banker's scourge to the banker's profit center as bankers have learned that there is much to be made on these short term loans at breathtaking interest rates. I note that the federal agencies have been complicit in the growth of this form of lending. I propose that the banks and the agencies recognize the reality and attempt to mitigate these rates by encouraging the development of a competitive market.

Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson

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Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to-consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise …

Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts

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This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …

Chenery Ii And The Development Of Federal Administrative Law, Linda Jellum

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No abstract provided.

Junking The Junk Science Law: Reforming The Information Quality Act, Stephen M. Johnson

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In addition, the law contributes to the ossification of rulemaking agencies; encourages agencies to make decisions informally through guidance documents and policies rather than rules; and encourages agencies to avoid using electronic dialogues and disseminating information to the public. This Article examines the problems created by the IQA suggests repeal of the law or some reforms to address those problems.

Part II of this Article examines the shift in environmental policymaking from command and control regulation to information disclosure programs and economic based programs. It also examines the strengths limitations of information disclosure programs. Part III reviews the and the …

Guidance Documents And Regulatory Beneficiaries, Nina A. Mendelson

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Federal agencies rely heavily on guidance documents, and their volume is massive. The Environmental Protection Agency and the Occupational Safety and Health Administration recently catalogued over 2000 and 1600 such documents, respectively, issued between 1996 and 1999. These documents can range from routine matters, such as how employees should maintain correspondence files, to broad policies on program standards, implementation, and enforcement. Documents in the latter category include Education Department policies on Title IX implementation, Environmental Protection Agency policies on hazardous waste cleanup, the Food and Drug Administration's policies on food safety and broadcast advertising of pharmaceuticals, and many more.Although these …

The Irrational Auditor And Irrational Liability, Adam C. Pritchard

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This Article argues that less liability for auditors in certain areas might encourage more accurate and useful financial statements, or at least equally accurate statements at a lower cost. Audit quality is promoted by three incentives: reputation, regulation, and litigation. When we take reputation and regulation into account, exposing auditors to potentially massive liability may undermine the effectiveness of reputation and regulation, thereby diminishing integrity of audited financial statements. The relation of litigation to the other incentives that promote audit quality has become more important in light of the sea change that occurred in the regulation of the auditing profession …

Global Administrative Law: The View From Basel, Michael S. Barr, Geoffrey P. Miller

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International law-making by sub-national actors and regulatory networks of bureaucrats has come under attack as lacking in accountability and legitimacy. Global administrative law is emerging as an approach to understanding what international organizations and national governments do, or ought to do, to respond to the perceived democracy deficit in international law-making. This article examines the Basel Committee on Banking Supervision, a club of central bankers who meet to develop international banking capital standards and to develop supervisory guidance. The Basel Committee embodies many of the attributes that critics of international law-making lament. A closer examination, however, reveals a structure of …

Antidiscrimination Law In The Administrative State, Julie C. Suk

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The article argues that antidiscrimination law in the U.S. should shift its focus from corrective justice, which addresses individual wrongs, to distributive justice, which aims to eradicate systemic inequalities and promote equal opportunities. This shift would require enhancing the role of administrative agencies, such as the EEOC, to enforce antidiscrimination laws more effectively through proactive regulation and rulemaking. The article draws on the British model, where administrative agencies have stronger enforcement powers, to suggest reforms for the EEOC.

Ruminations On Dissemination: Limits On Administrative And Judicial Review Under The Information Quality Act, Stephen M. Johnson

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Supporters call it "one of the most significant developments in the federal rulemaking system since passage of the Administrative Procedure Act." Opponents suggest that it "may well prove the most destructive half-page of law that most people do not know is on the books." It is the Information Quality Act, enacted in 2000 as a two paragraph rider to appropriations legislation for the 2001 fiscal year. While it was supposed to improve the quality of information that the government relies upon in decision making, critics assert that the Act contributes to the ossification of rulemaking, encourages agencies to make decisions …

The Sec At 70: Time For Retirement?, Adam C. Pritchard

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As one grows older, birthdays gradually shift from being celebratory events to more reflective occasions. One's 40th birthday is commemorated rather differently from one's 2lst, which is, in turn, celebrated quite differently from one's first. After a certain point, the individual birthdays become less important and it is the milestone years to whch we pay particular attention. Sadly for entities like the Securities and Exchange Commission, it is only the milestone years (the ones ending in five or zero, for some reason), that draw any attention at all. No one held a conference to celebrate the SEC's 67th anniversary. Clearly …

After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine

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The following essay is based on a talk the speaker was invited to deliver to the National Labor Relations Board on June 3 in Washington, D.C., on the occasion of the agency's 70th anniversary.

Learning The Value Of Drugs - Is Rofecoxib A Regulatory Success Story?, Rebecca S. Eisenberg

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Controversy over recent revelations concerning the adverse cardiovascular effects of selective cyclooxygenase- 2 (COX-2) inhibitors has generally been framed as a story of regulatory failure, in which the Food and Drug Administration (FDA) has failed in its mission to protect the public from unsafe products. But this simplistic understanding of the mission of the FDA seems to make failure all but inevitable, if the reliable observation of the risks and benefits of a drug requires rigorous long-term studies. Perhaps in an earlier era the goal of drug regulation was simply to protect the public from poisons. Today, drug regulation guides …

The Problem Of New Uses, Rebecca S. Eisenberg

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Discovering new uses for drugs that are already on the market seems like it ought to be the low-lying fruit of biopharmaceutical research and development (R&D). Firms have already made significant investments in developing these drugs and bringing them to market, including testing them in clinical trials, shepherding them through the FDA regulatory approval process, building production facilities, and training sales staff to market them to physicians. By this point, the drugs have begun to enjoy goodwill among patients and physicians and casual observations in the course of clinical experience may point to potential new uses. One might expect that …

The Sec At 70: Time For Retirement?, Adam C. Pritchard

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The Article proceeds as follows. Part I explains the pathologies of the SEC and explores the relation between those pathologies and the SEC's status as an independent agency. Part II then outlines an alternative regulatory structure primarily situated within the executive branch. I also argue that such a relocation of authority would enhance regulatory effectiveness while simultaneously reducing the cost of excessive regulation. The Article concludes with some thoughts about the viability of my proposal.

Prometheus Radio Project V. Fcc: The Persistence Of Scarcity, Aaron Perzanowski

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Part I traces the history of broadcast regulation, emphasizing the development of the scarcity doctrine and the subsequent deregulatory trend. Part II examines the FCC's 2003 rule changes and the Third Circuit's analysis of those modifications in Prometheus Radio Project v. FCC. Part III analyzes the assumptions underlying the FCC's proffered explanation for its rule changes, ultimately concluding that they lack justification, and offers suggestions for responsible ownership deregulation. Part IV calls on Congress to reassert itself as the final arbiter of media policy.